Tampa Bay Times’ Politifact.com has updated its long-running fact check of President Obama’s campaign promise to strengthen whistleblower laws. I was honored to be included as a source of information by its author, Lilly Maier.
Politifact’s bottom line is this:
Obama promised to strengthen whistleblower laws by speeding up the review process of claims and granting full access to jury trials and due process. When we last checked his promise in 2012, we rated it a Compromise, saying that Obama has made a lot of progress (especially through his appointments), but that he was nowhere near the standards set by his own campaign rhetoric.
Since then, a lot has changed.
Obama enacted structural reforms by signing the Whistleblower Protection Enhancement Act and the Presidential Policy Directive 19 – which closed many loopholes in whistleblower protections for federal employees, and gave the intelligence community free speech rights for the first time ever.
All the experts we have talked to were more than eager to acknowledge that Obama has done more to protect whistleblowers than any other president before him. But national security whistleblowers represent a glaring exception. The Obama administration has prosecuted more whistleblowers under the Espionage Act than any president before.
Additionally, Obama didn’t manage to get whistleblowers access to jury trials, which was part of his original promise.
We continue to rate his promise a Compromise.
My email interview with Ms. Maier included more information than was necessary for updating this particular fact-check, but I thought it would be valuable to include a lightly-edited excerpt of it here, for the whistleblower community, to comprehensively list the outstanding issues I’ve identified for the past 2 years which stymie access to justice at the Merit Systems Protection Board:
President Obama ran on a platform of protecting and listening to whistleblowers, as well as making sure that they have full access to courts.
The reality is that, with regards to employees who have access to the MSPB (non-national security employees, by and large), the situation has improved only marginally. The percentage of cases decided in favor of employees has increased from less than 2% to about 3-4%. Some of these numbers are available at www.mspbwatch.org/statistics.
An article written by attorney and federal whistleblower Robert J. McCarthy compared statistics at MSPB versus other whistleblower offices (Department of Labor, OSHA) and other administrative tribunals (Social Security Administration). The numbers are still unfavorable to MSPB appellants: http://mspbwatch.org/2012/07/30/mspb-judges-are-hopelessly-biased-heres-how/ and http://www.dcbar.org/for_lawyers/resources/publications/washington_lawyer/october_2012/stand.cfm.
I have been trying for about 2+ years to raise awareness about the due process issues at the MSPB, as have others. The non-profit Public Employees for Environmental Responsibility recently re-sounded the alarm about an “assembly line of injustice” at MSPB, something they’ve done in 2011. It seems nothing’s changed in 2 years with Obama-appointed leadership at the helm: http://mspbwatch.org/2013/09/09/peer-mspb-draft-plan-ignores-assembly-line-injustice-in-whistleblower-cases/
The White House is fond of citing to the President’s signing of the Whistleblower Protection Enhancement Act to bolster its pro-whistleblower bona fides. While it is true that the WPEA represents much-needed reform to restore Congress’ 1978 and 1989 intentions to protect federal whistleblowers, the law itself did not provide “full access to courts.” Early versions of the WPEA would have allowed whistleblowers to go to federal district court, but tradeoffs included no jury trials and weakening of burdens of proof for agencies to justify terminations or other personnel actions. In the end, the latter proved too high a price for the whistleblower community.
On the national security front, there are reports that the White House balked at providing protections for national security employees, and thus such protections were stripped in the final WPEA version, despite its earlier promises. I believe Stephen Kohn of the National Whistleblowers Center is the person who can best speak about this: http://www.washingtontimes.com/news/2013/jun/11/obama-blamed-nsa-spying-revelations-whistleblower-/
There is an objective “gold standard” in whistleblowing laws, as identified by now-senior OSC official Jason Zuckerman. While in private practice, he co-wrote an article that called the District of Columbia’s newly-amended whistleblower law the “the strongest public sector whistleblower protection statute in the country.” What makes this law the gold standard is access to jury trials, strengthened disciplinary provisions for supervisors found to have engaged in retaliation, and public recognition of whistleblowers through statutory awards: http://mspbwatch.org/2012/06/16/what-would-state-of-the-art-federal-whistleblowing-legislation-look-like/
One of the biggest problems at MSPB is lack of transparency, condensed periods of adjudication that do not allow litigants to gather crucial evidence, and too much deference to the rulings and credibility determinations of administrative judges, which are often deemed “virtually unreviewable.” There are usually no smoking guns to point to why the statistics are lopsided against litigants, just a series of rulings (death by a thousand paper cuts) that deny litigants access to witnesses, discovery, testimony, and so forth. I am trying to shine a light on this situation by publicizing willing litigants’ full dockets: http://mspbwatch.org/2013/10/04/donate-your-docket/. Future posts will delve into specific instances to bolster my admittedly broad claim.
The Board would likely point to the statistics and say that 3-4% does not represent an accurate picture, since many litigants settle with agencies (around 30%). While this is technically correct, we have no way of knowing the quality of those settlements. Further, many cases that are “dismissed with prejudice” used to be because of what we now know to be erroneous, or at least congressionally-unintended, rulings that removed protections from disclosures (because they were made to one’s supervisor, for instance): http://mspbwatch.org/2013/06/06/appellant-success-rate-at-mspb-whats-the-right-number/ and http://mspbwatch.org/2013/06/07/mspb-executive-director-responds-to-whistleblowers-critical-article/. There is evidence that the practice continues: the Board recently limited protections for a disclosure as a per se, legal basis, in arguable contravention of Congress’ intent in 2012: http://mspbwatch.org/2013/11/06/mspb-upholds-rejection-of-disclosure-on-meuwissen-grounds/.
A contributing factor to the situation at MSPB is the absence of an independent Inspector General (its general counsel assumes this role, which I contend is a conflict of interest). Further, a recent MSPB FOIA revealed that no IG investigations took place between 2009 to 2012: http://mspbwatch.org/2013/11/07/mspbs-non-functioning-inspector-general-function-comes-into-focus/. Further, no administrative judge has been disciplined for failing to meet performance standards between 2002-2012, despite the Board adjudicating some 80,000 cases in that time: http://mspbwatch.org/2012/10/20/mspb-chair-the-board-has-not-disciplined-any-administrative-judge-for-failure-to-meet-performance-standards-between-2002-and-the-present/.
Finally, journalist David Cay Johnston has called for the MSPB to be “overhaul[ed]” recently: http://www.newsweek.com/hounding-whistleblowers-wrong-1164.
A last point is that the Board technically has the function of studying the merit systems systematically and answering the yes/no question of “whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.” Chairman Susan Tsui Grundmann made an explicit pledge in her confirmation hearing to do so. To date it has not occurred, even after Ms. Grundmann elucidated the history of the “special studies function” in a subsequent Senate hearing: http://mspbwatch.org/2012/03/24/mspb-chair-grundmanns-remarks-to-the-senate-show-promise/ and http://mspbwatch.org/2011/11/17/mspb-chair-susan-tsui-grundmanns-pledge-to-the-president-and-the-congress/.
The reason for the Board’s failure to do so, I contend, is because of an institutional conflict of interest, as predicted by the DOJ in 1978: http://mspbwatch.org/2013/04/10/in-1978-the-dojs-office-of-legal-counsel-predicted-the-irrelevance-of-mspbs-special-studies-function-it-was-right/ and
http://mspbwatch.org/2013/02/15/is-a-conflict-of-interest-at-the-mspb-hampering-its-mission/ and http://mspbwatch.org/2013/03/12/sen-grassley-wonders-why-voting-section-problems-have-never-been-dealt-with/.
The above notwithstanding, the Board took issue with my and another advocate’s assertion that it has never answered the yes/no question: http://mspbwatch.files.wordpress.com/2011/11/01-08-2013_mspb-response-to-petition-for-rulemaking-re-5-usc-1204a3.pdf. You can decide for yourself, but a “founding father” of the CSRA and MSPB, Dwight K. Ink, wrote the following in 1998:
The MSPB Office of Policy and Evaluation has had excellent people but does not have anything approaching the resources needed to uncover systemic problems related to the merit principles and prohibited practices. Congress has tended to look upon the special studies as duplicative of OPM work. This is due in part to the fact that over its lifetime, so many of the MSPB studies, while useful, have been of the type that OPM should be doing rather than its primary mission under the law to conduct studies and report to the president and Congress on whether the “public interest in a civil service free of prohibited personnel practices is being adequately protected.”